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Con Law Flashcards

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1
Q

Requirements for standing

A

To assert standing, P must est concrete, direct personal stake in outcome
1. injury in fact

  1. causation
  2. redressability
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2
Q

What can Congress regulate under the commerce clause?

A

Under the commerce clause, congress can regulate channels and instrumentalities of interstate commerce and any activity that has a substantial economic effect on interstate commerce

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3
Q

A regulation of intrastate activity that is is economic in nature will be upheld if

A

rational basis exists to conclude that the activity substantially affects interstate commerce

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4
Q

Test for intrastate activity that is is noneconomic in nature

A

regulation will be upheld if Congressional finding that the activity substantially affects interstate commerce (stricter test)

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5
Q

(dormant commerce clause)

State regulation of interstate commerce will be upheld only if:

A
  • regulation is nondiscriminatory

- regulation does not unduly burden interstate commerce

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6
Q

When does strict scrutiny apply?

A

Applies when:
discrimination is based on a suspect classification
(RAN: race, alienage, national origin)
Fundamental right is implicated (vote, travel, privacy) (Right to Privacy (CAMPERS): contraception, abortion, marriage, procreation, education (private), relations (family), sexual relations)

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7
Q

What is the test for strict scrutiny?

A

government must show that

  1. law is necessary to achieve (no less restrictive means)
  2. compelling govt interest (necessary or crucial for society)
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8
Q

When does intermediate scrutiny apply?

A

Applies when:

  1. discrimination is based on gender
  2. discrimination is based on child being born to unwed parents
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9
Q

What is the test for intermediate scrutiny?

A

Government must show

  1. law is substantially related (close fit needed, not necessarily the least restrictive means)
  2. to an important government interest (less than compelling, more than legitimate) (gender discrimination requires “exceedingly persuasive justification)
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10
Q

When does rational basis apply?

A

Applies when neither strict or intermediate scrutiny apply

Applies if discrimination is based on age, poverty/wealth, mental incapacity, or necessities for life

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11
Q

What is the test for rational basis?

A

P (not govt) must show that

  1. law is not rationally related
  2. to any legitimate govt interest
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12
Q

What test applies to regulations of speech content?

A

Strict scrutiny

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13
Q

What test applies to regulations of speech conduct?

A

time/place/manner test

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14
Q

What is the time/place/manner test for public forums and designated public forums?

A

Regulation must

	1. further important govt interest
	2. be narrowly tailored
	3. leave open alternative channels of communication
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15
Q

What is the time/place/manner test for nonpublic or limited public forums?

A

Regulation must

		1. be viewpoint neutral
		2. be reasonably related to legitimate govt purpose
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16
Q

Six categories of unprotected speech

A
  1. speech advocating imminent lawlessness
  2. fighting words
  3. obscenity
  4. child pornography
  5. false/deceptive advertising
  6. Defamation
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17
Q

Justiciability

A

Federal courts can only decide an actual case or controversy

  • no advisory opinions
  • ripe, not moot
  • brought by someone with standing
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18
Q

Advisory opinions lack

A
  • actual dispute between adverse parties OR

- legally binding effect on the parties

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19
Q

Ripeness requirements

A
  • issue is fit for a judicial decision (legal, not factual issues) AND
  • plaintiff would suffer substantial hardship in the absence of review
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20
Q

Mootness definition

A

A live controversy must exist at all stages of review

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21
Q

Mootness exceptions

A
  • controversies capable of repetition that evade review due to their inherently short duration
  • cases where D voluntarily stops the offending practice but is free to resume
  • class actions in which the class representative’s controversy has become moot, but the claim of at least one other member is viable
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22
Q

Requirements for Standing

A
  1. Injury in fact
    - particularized injury
    - concrete injury
  2. Causation
  3. Redressability
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23
Q

Exceptions to standing requirements

A
  • taxpayer has standing to challenge their tax bill
  • a person MAY have standing to allege that federal action violates 10A by interfering with powers reserved to the states as long as the person has a redressable injury
  • people have standing to challenge congressional spending (has to be spending, not providing property) on 1A establishment cause grounds
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24
Q

When can a claimant with standing in their own right assert the rights of a third party?

A
  1. it is difficult for the third party to assert their own rights OR
  2. a close relationship exists between the claimant and the third party
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25
Q

When does an organization have standing to sue on behalf of its members?

A
  1. there is an injury in fact to the members
  2. the members’ injury is related to the organization’s purpose AND
  3. individual member participation in the lawsuit is not required
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26
Q

Standing for free speech overbreadth claims

A

A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary (in other words, that the restriction was overbroad), even if that person’s own speech would not be protected under the First Amendment. Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment.
–does not apply to restrictions on commercial speech

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27
Q

11A sovereign immunity

A

The Supreme Court has held that the doctrine of sovereign immunity reflected in the Eleventh Amendment bars a private party’s suit against a state in federal and state courts (and in federal and state agencies)
Does not apply to claims against local governments, by the US, by other states, proceedings in federal bankruptcy courts

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28
Q

Exceptions to 11A sovereign immunity

A
  1. consent/waiver
  2. certain actions against state officers (1. actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state (the state cannot be made to pay retroactive damages); and 2. actions for damages against an officer personally)
  3. Congress can remove a state’s immunity for actions under 14A power to prevent discrimination, but the removal of immunity must be unmistakably clear (abrogation)
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29
Q

When does abstention apply?

A
  • disposition rests on an unsettled question of state law
  • Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith
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30
Q

Adequate and independent state grounds

A

The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds—even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.

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31
Q

What powers can Congress exercise?

A

Those enumerated in art 1 sec 8 and those necessary and proper to carry out its enumerated powers

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32
Q

Does congress have police powers, like the states?

A

No, but it has similar powers over DC, federal lands, military bases, and Indian reservations

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33
Q

Can the necessary and proper clause support a federal law on its own?

A

No. Cannot support federal law standing alone, it has to be linked to one of Congress’s enumerated powers

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34
Q

Tax and spend power- what can Congress spend on?

A

Congress has the power to tax and spend to provide for the general welfare- for any public purpose not prohibited by the constitution
(this general welfare clause does not support nonspending regulations)

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35
Q

Requirements for Congress to impose conditions on the grant of money to state/local governments
Such conditions are valid if

A
  1. they are clearly stated
  2. they relate to the purpose of the program
  3. they are not unduly coercive AND (ex: Medicaid expansion)
  4. they do not otherwise violate the constitution
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36
Q

When can congress use commerce power to regulate?

A

Congress can regulate commerce with foreign nations, native American tribes, and among states

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37
Q

Requirements for a federal law regulating commerce to be within Congress’s Commerce Clause power

A
  1. Regulate the channels of interstate commerce
  2. regulate the instrumentalities of interstate commerce OR
  3. regulate activities that have a substantial effect on interstate commerce
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38
Q

When can Congress regulate intrastate commerce under the substantial effect prong?

A

If the court finds a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce

  • 10A prohibits regulating noneconomic activity in areas traditionally regulated by state/local govts
  • congress cannot compel activity
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39
Q

A valid delegation of legislative power requires

A

Intelligible standards for the delegate to follow

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40
Q

Bicameralism and presentment requirements

A

To pass a law, Congress must use bicameralism (passage of a bill by both houses of Congress) followed by presentment to the President for signature or veto
NO line-item vetos
NO legislative veto

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41
Q

Executive Powers

A

Art II

President must faithfully execute the laws

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42
Q

Implied presidential powers

A

Strongest when authorized by congress
Where Congress is silent- twilight zone
Against the express will of Congress –likely invalid

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43
Q

Requirements for president to enter treaty

A

President has the power to enter with consent of 2/3 of senate

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44
Q

Treaties that are self-executing ___ conflicting state laws

A

Invalidate

they are supreme, like federal law

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45
Q

Which prevails in a conflict between federal law and a valid treaty?

A

Last in time prevails

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46
Q

Which prevails in a conflict between federal constitution and a valid treaty?

A

Constitution

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47
Q

Executive Agreements

A
  • no senate approval required
  • prevail over conflicting state laws
  • federal laws prevail over executive agreements
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48
Q

Exclusive federal powers

A
  • where power of state is expressly limited

- inherently federal powers that can only be exercised by the fed govt

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49
Q

Exclusive state powers

A
  • those not granted to fed government

- general police powers (health, safety, welfare)

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50
Q

Tenth Amendment

A

Powers not granted to the federal government are reserved to states or people
Congress cannot compel states to pass laws, administer federal programs – anti-commandeering principle

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51
Q

As a practical matter, SCOTUS ______ strikes down a federal regulation or tax that impacts state or local govt entities on 10A grounds

A

ALMOST NEVER

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52
Q

Preemption

A

Can be express (in statute)
Can be implied
-conflict between federal and state law such that it is impossible to follow both
-state law impedes or frustrates federal law
-field preemption: a valid federal law may impliedly “occupy” the field, thus barring any state or local law, even if nonconflicting (inferred intent by congress)

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53
Q

Privileges AND immunities clause (art IV)

A

Prohibits states from discriminating against out-of-state citizens

  • important commercial activities and ability to earn a living
  • only US citizens
  • not absolute
54
Q

14A Privileges and immunities clause

A

Protects privileges and immunities and national citizenship

right to petition Congress, right to vote for federal officers, right to interstate travel

55
Q

Dormant Commerce Clause

A

State law cannot unduly burden interstate commerce
Discriminatory state law = presumptively invalid
–state can justify if 1. Necessary to achieve purpose unrelated to protectionism 2. No non-discriminatory alternatives
Nondiscriminatory state laws = presumptively valid
–invalid if burden outweighs benefit (essentially irrational)

56
Q

Dormant Commerce Clause exceptions

A
  • congressional approval
  • state as “market participant”
  • favoring government performing traditional government functions
57
Q

The constitution only restricts government action, except for the

A

13A ban on slavery

58
Q

State action doctrine

A

Government action needed for constitution to apply
State action includes laws and acts of govt officials in official capacity
NOT private action
Exception:
1. activities traditionally and exclusive performed by government (exclusive public functions) or
2. significant state involvement in private conduct

59
Q

5A due process clause is applicable to

A

Federal government

a person has a right to a fair process when the government deprives the person of life, liberty, or property

60
Q

14A due process clause is applicable to

A

States

a person has a right to a fair process when the government deprives the person of life, liberty, or property

61
Q

due process clause- a deprivation of liberty occurs when

A

a person

  • loses significant freedom of action OR
  • is denied a freedom provided by the constitution or statute
62
Q

Injury to reputation _____ deprivation of liberty or property under the due process clause

A

IS NOT

63
Q

due process clause- property includes

A

-personal and real property
-both tangible and intangible
-government benefits to which there is an entitlement (reasonable expectation of continued receipt)
(NOT at will employment)

64
Q

Procedural due process requires

A
  • notice
  • opportunity to be heard AND
  • a neutral decisionmaker
65
Q

Balancing test for hearing under DPC

A

Type and extent are determined by:
-importance of the interest to the individual,
-value of procedural safeguards to that interest against the govt interest in fiscal and admin efficiency
Typically, should be a pre-deprivation hearing unless impracticable

66
Q

Substantive due process

A

guarantees that laws will be reasonable and not arbitrary, both with respect to rights enumerated in the Constitution (for example, the freedom of speech) and unenumerated rights (for example, privacy)

67
Q

Applicable standards for substantive due process

A

Fundamental rights (1A, interstate travel, privacy-related, voting) – strict scrutiny
All others – rational basis
What types of claims apply:
Govt denies everyone:
Government denies targeted group:
Govt denies everyone: substantive due process
Government denies targeted group: due process and equal protection

68
Q

Privacy-related rights for substantive due process

A
  • marriage
  • procreation
  • contraception
  • parental rights
  • right to live w/ extended family
  • abortion
69
Q

Standard for abortion (substantive due process)

A

Before viability, regulations must not place an undue burned on the woman’s right to obtain an abortion
Post-viability, state can ban unless necessary to protect woman’s health or safety

70
Q

Rights to interstate travel (substantive due process)

A
  • right to travel from state to state

- right to be treated equally after moving to a new state

71
Q

Right to international travel

A

NOT a fundamental right
Protected from arbitrary federal interference by 5A DPC
Rational basis standard

72
Q

Right to vote

A

Generally strict scrutiny

Lesser burdens may only get rational basis (restrictions that protect the right to vote)

73
Q

Standard for right to bear arms

A

-unclear, but more than rational basis

74
Q

Sources of EPC guarantees

A
  • 14A EPC —states

- 5A DPC—fed govt

75
Q

When does strict scrutiny apply?

A

Fundamental rights or suspect classification

76
Q

When does intermediate scrutiny apply?

A

Quasi-suspect classification (such as gender)
When does rational basis apply?
Neither strict or intermediate scrutiny apply

77
Q

How to show government intent for strict/intermediate scrutiny?

A
  • law discriminatory on its face
  • facially neutral law and discriminatory application
  • facially neutral law disparate impact + discriminatory intent
78
Q

Classifications are suspect if they are based on

A

Race, national origin, and (at state and local levels) alienage

79
Q

Scrutiny for classifications based on alienage

A

Fed govt: rational basis
State/local: usually strict scrutiny
Exception: rational basis for positions and activities essential to self-government

80
Q

Scrutiny for children of undocumented aliens

A

Likely rational basis

Look for animus (animus is never rational)

81
Q

Quasi suspect classifications

A

Gender

Legitimacy of nonmarital children

82
Q

Gender classifications based on role stereotypes are

A

Generally invalid

83
Q

Takings rule

A

Private property can only be taken for public use and the government must pay just compensation

84
Q

How to determine if there has been a taking?

A

-physical confiscation
-permanent, regular occupation
-temporary occupation –case by case analysis
Exceptions:
-Development conditions for public purposes
-Public emergency

85
Q

Regulatory takings

A

It is a taking when regulation leaves no economically viable use
If the regulation merely decreases the economic value, then apply the balancing test and consider
Economic impact
Investment-backed expectations
Public interest

86
Q

What is “public use” for takings considerations?

A

If the govt’s action is rationally related to a legitimate public purpose, the public use requirement is satisfied

87
Q

What is “just compensation” for takings considerations?

A

Fair market value at the time of the taking

88
Q

Contract clause

A

State/local laws cannot retroactively impair contract rights
-private party contracts – intermediate scrutiny
-public contracts—heightened scrutiny
Does NOT apply to fed government

89
Q

Ex post facto laws

A 
Cannot retroactively alter CRIMINAL liability
Includes retroactively
-criminalizing conduct
-increasing punishment
-reducing evidence required to convict
90
Q

Bills of attainder

A

Both state/local and federal govt are prohibited from passing legislation that punishes individuals without trials

91
Q

What does the first amendment prohibit?

A

prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion
applies to states through 14A

92
Q

What is speech for 1A purposes?

A

Speech includes words, symbols, and expressive conduct.
Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is:
-Intended to convey a message, and
-Reasonably likely to be perceived as conveying a message

93
Q

Unprotected speech

A
  • incitement
  • fighting words
  • true threats
  • obscenity
94
Q

Elements of incitement

A
  1. intended to produce imminent lawless action and

2. likely to produce such action

95
Q

definition of fighting words

A

personally abusive words that are likely to incite immediate physical retaliation in an average person
words that are merely annoying won’t do

96
Q

definition of true threat

A

words that are intended to convey to someone a serious threat of bodily harm

97
Q

elements of obscenity

A

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:

  • Appeals to the prurient interest in sex, using a contemporary community standard
  • Is patently offensive under contemporary community standards AND
  • Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard
98
Q

Private possession of obscene material

A

Is allowed in the home (except child porn)

Govt can criminalize sale/distribution

99
Q

If a defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires

A

the plaintiff to prove all the elements of defamation PLUS falsity and some degree of fault in order to recover

100
Q

If a defamation plaintiff is a public figure, the degree of fault the plaintiff must show is

A

Actual malice

knowledge of falsity or reckless disregard for truth

101
Q

Definition of public officials (defamation)

A

include people (1) holding or running for elective office (at any level), and (2) public employees in positions of public importance (for example, prosecutor, school principal, police officer)

102
Q

Definition of public figures (defamation)

A

people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular public controversies to influence their resolution

103
Q

if a private figure sues for defamation on a matter of public concern the plaintiff can only

A

recover actual damages if the plaintiff only shows negligence. To recover punitive damages or presumed damages they need to show actual malice

104
Q

If a private figure sues for defamation on a matter of private concern

A

The first amendment is not implicated

Can recover for damages allowed under state law, do not need to show actual malice

105
Q

Commercial speech gets no 1A protection if

A

it is (1) false, (2) misleading, or (3) about illegal products or services

106
Q

Regulations of commercial speech will be upheld only if it

A

-serves a substantial govt interest
-directly advances that interest AND
-is narrowly tailored to serve that interest (reasonable fit, not least restrictive)
(test is a form of intermediate scrutiny)

107
Q

Content-based regulations of speech are subject to

A

strict scrutiny

108
Q

content-neutral regulations of speech are subject to

A 
intermediate scrutiny
(must advance important interests and must not burden substantially more speech than necessary)
109
Q

content based restrictions on speech

A

limit speech based on subject or viewpoint

110
Q

content-neutral restrictions on speech

A

limit speech on a basis other than content (often time, place, manner)

111
Q

Speech restrictions for traditional public forums and designated public forums

A

Content based -strict scrutiny
Content-neutral – intermediate scrutiny:
-must be narrowly tailored to serve an important government interest (need not be the least restrictive) AND
-leave open alternative channels of communication

112
Q

Speech restrictions for limited public forums and nonpublic forums

A
  • can restrict speech to preserve spaces for intended use
  • cannot engage in viewpoint discrimination (triggers strict scrutiny)
  • must be viewpoint neutral and reasonably related to a legitimate govt purpose
113
Q

Speech restrictions in primary/secondary public schools

A 
cannot censor personal student speech on campus absent substantial disruption
-exception: can ban speech promoting illegal drugs
limited restrictions on personal student speech off-campus
-prevent bullying, cheating, threats
-safety or educational concerns must clearly outweigh speech interests
School speech (related to teaching)
-restrictions must be reasonably related to educational objectives
(deferential standard for schools)
114
Q

Speech in public employment- unprotected speech

A
  • workplace speech on matters of private concern

- speech pursuant to official duties

115
Q

Speech in public employment – protected speech

A

speech as a private citizen on matters of public concern
-balance value of speech with interest in efficient workplace
speech as private citizen on matters of private concern
-unclear test, probably protected absent detrimental effect

116
Q

Vagueness doctrine

A

DPC invalidates laws that don’t give reasonable notice of what is prohibited
-based on 1A, applies more strictly in speech context

117
Q

Overbreadth 1A

A

A law is invalid if it bans substantially more speech than necessary

118
Q

Prior restraints

A

Types: injunctions, licensing schemes
Disfavored, but treated under standard free speech doctrine
Content based -strict scrutiny
Content-neutral – intermediate scrutiny
Content-based prior restraints usually fail absent special societal harm

119
Q

Prior restraints: licensing schemes require procedural safeguards:

A
  • well-defined standards
  • prompt appeals and judicial determination
  • no unfettered discretion for officials
120
Q

Free exercise clause

A

Prohibits govt from discriminating on the basis of religious belief, status, or conduct
(religious belief evaluated on sincerity, not content)

121
Q

Which laws are subject to the free exercise clause?

A

Laws that discriminate based on religious conduct, status or belief (including facial discrimination and narrowly tailoring to target religion)
-strict scrutiny
Neutral laws of general applicability are NOT subject to the FEC
(but refusing exemption requests could trigger strict scrutiny)

122
Q

Religious exemption from generally applicable laws is

A

Usually not required except in a few narrow situations (ex: employment discrimination for clergy)

123
Q

Establishment clause under the Lemon test

A

Government action violates the EC if

  • primary purpose is not secular
  • primary effect advances or inhabits religion OR
  • produces excessive govt entanglement w/ religion
124
Q

Establishment clause under the neutrality test

A

The government must remain neutral with respect to religion, neither favoring nor disfavoring it

125
Q

Establishment clause under the coercion test

A

The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion

126
Q

Establishment clause under the endorsement test

A

The government must not appear to endorse or disapprove of religion from the standpoint of a reasonable and informed observer and, therefore, make religion seem relevant to a person’s standing in the political community

127
Q

Establishment clause under the history & tradition principle

A

In some cases, the Court will find that a government religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation.
Note: It helps if the display or practice has been around for a while or is in a historical setting

128
Q

Three categories of president’s domestic authority

A
  • appoint high=level officers with senate approval
  • pardon federal offenses
  • veto bills
129
Q

Three categories of president’s power over external affairs

A
  • can act militarily but cannot declare war
  • represent US in foreign relations
  • enter into treaties with 2/3 senate approval
130
Q

Congress’s taxing and spending power are limited by

A

Individual rights

131
Q

Privileges AND immunities clause in article 4 prevents

A

Discrimination by states against out-of-state people for economic interests

132
Q

Privileges OR immunities clause in 14A prevents

A

States from denying their own citizens rights guaranteed by the constitution

Bar Prep (9 decks)

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